Many commentators and scholars have called attention to the importance of filling the Supreme Court vacancy left by the death of Justice Antonin Scalia given the lack of precedent for Senate inaction on the Court within a certain time frame. On principle, President Obama is still the president and thus is entitled to nominate justices to the Supreme Court, as he did with his nomination of Judge Garland, and the nominee should be entitled to confirmation hearings.
There are also pragmatic concerns. On Wednesday, the Supreme Court heard oral arguments for a case regarding religious accommodations to the contraceptive mandate under the Affordable Care Act (ACA). Justice Anthony Kennedy typically serves as the swing vote siding more often than not with the conservative wing of the Court. In oral arguments, Kennedy appeared sympathetic to the substantial burdens of those working to opt out of contraception coverage in health plans under the ACA, though he posed questions in both directions of the issue. If Kennedy votes with the liberal wing of the Court, Scalia’s death will not be consequential for the case, but if Kennedy aligns with conservatives, we will have a 4-4 split. In the event that the Supreme Court is indeed evenly split, as appears fairly likely the case, lower court rulings rejecting the Christian organizations’ challenges would stand.
Kennedy’s record on reproductive rights is mixed. He voted with the majority in Planned Parenthood v. Casey, which reaffirmed Roe v. Wade but nevertheless allowed states to impose a number of constraints on abortion access provided that such laws do not pose an “undue burden.” However, he also authored the majority opinion in Gonzales v. Carhart, which upheld the Partial-Birth Abortion Ban Act of 2003. And in 2014, he authored a concurrence in Burwell v. Hobby Lobby, in which the Supreme Court held 5-4 that the Religious Freedom Restoration Act (RFRA) allows a for-profit company to deny employees contraceptive coverage given the religious objections of the company owners. So which Anthony Kennedy will we see in the resolution of this case? Time will tell…
There are also pragmatic concerns. On Wednesday, the Supreme Court heard oral arguments for a case regarding religious accommodations to the contraceptive mandate under the Affordable Care Act (ACA). Justice Anthony Kennedy typically serves as the swing vote siding more often than not with the conservative wing of the Court. In oral arguments, Kennedy appeared sympathetic to the substantial burdens of those working to opt out of contraception coverage in health plans under the ACA, though he posed questions in both directions of the issue. If Kennedy votes with the liberal wing of the Court, Scalia’s death will not be consequential for the case, but if Kennedy aligns with conservatives, we will have a 4-4 split. In the event that the Supreme Court is indeed evenly split, as appears fairly likely the case, lower court rulings rejecting the Christian organizations’ challenges would stand.
Kennedy’s record on reproductive rights is mixed. He voted with the majority in Planned Parenthood v. Casey, which reaffirmed Roe v. Wade but nevertheless allowed states to impose a number of constraints on abortion access provided that such laws do not pose an “undue burden.” However, he also authored the majority opinion in Gonzales v. Carhart, which upheld the Partial-Birth Abortion Ban Act of 2003. And in 2014, he authored a concurrence in Burwell v. Hobby Lobby, in which the Supreme Court held 5-4 that the Religious Freedom Restoration Act (RFRA) allows a for-profit company to deny employees contraceptive coverage given the religious objections of the company owners. So which Anthony Kennedy will we see in the resolution of this case? Time will tell…
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